Samootin v Wagner - [2006] FamCA 432

[2006] FamCA 432

FAMILY LAW ACT 1975

IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA                Appeal No EA136 of 2005
AT SYDNEY  File No SYF5191 of 1993

BETWEEN:

AS
Applicant Wife
- and -

GW
- and -
AH

11^TH and 12^th Respondents

REASONS FOR JUDGMENT

CORAM:  BRYANT CJ, KAY & COLEMAN JJ
DATE OF HEARING:                 3 May 2006
DATE OF JUDGMENT:             3 May 2006

APPEARANCES: The Applicant Wife in person.

Ms Dawson of Counsel, instructed by Mallesons Stephen Jaques, Solicitors, Level 60, Governor Phillip Tower, 1 Farrar Place, Sydney NSW 2000, appeared on behalf of the Respondent Husband.

AS and GW and AH

EA136 OF 2005

CORAM: BRYANT CJ, KAY & COLEMAN JJ

DATE OF HEARING: 3 May 2006

DATE OF JUDGMENT: 3 May 2006

Catchwords: FAMILY LAW – PROPERTY SETTLEMENT – BANKRUPTCY – Rights of creditors – Debts owed to third party creditors – Creditors owed monies on an unpaid costs judgment obtained in the Supreme Court of NSW – Appellant sought to rely on ss 90AF and 114 of the Family Law Act 1975 to prevent the commencement or continuance of bankruptcy proceedings against her by the creditors – Further by s 90AE the appellant sought to join the creditors as parties to pending property settlement proceedings against her former husband – The appellant sought that the judgment debts be taken into account in the property settlement, but accepted she alone had incurred them – Trial Judge’s finding that criteria governing the issuance of injunctions set out in ss 90AF(3) and (4) were not met was within discretion.

KAY J:

This is an application seeking leave to appeal against orders made by the Honourable Justice Boland on 5 September 2005, wherein her Honour dismissed an application in a case filed by the appellant on 16 August 2005 and made an order that the appellant pay the respondents' costs of the proceedings as agreed and failing agreement as assessed.

Leave is required by reason of the provisions of s 94AA of the Family Law Act. The relevant principles to be applied in respect of an application for leave to appeal can be found in the decisions of Rutherford v Rutherford (1991) FLC 92-255; 15 Fam LR 1, Adam P Brown Male Fashion Pty Ltd v Philip Morris (1981) 148 CLR 170, and Jackson v Fordham (1995) FLC 92-561; 18 Fam LR 336. There needs to be an error of principle and/or substantial injustice to one of the parties.

In the application that was dismissed by her Honour, the applicant, who it is convenient to refer to as “the appellant” in these proceedings, sought orders as follows:

“1.Pursuant to Section 90AE(1), Family Law Act 1975, Part VIII, orders are sought to join as third parties to the proceedings GW and AH. GW to be joined as the 11^th Respondent and AH to be joined as the 12^th Respondent.
2.Pursuant to Section 90AF1(b), Family Law Act 1975, Part VIII, injunction…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Samootin v Wagner

Details

AGLC: Samootin v Wagner [2006] FamCA 432
Case: [2006] FamCA 432
Decision Date: 3 May 2006

CaseChat Overview and Summary

The parties to this proceeding were the appellant, Samootin, and the respondent, Wagner. The dispute concerned the appellant's claim for damages for personal injuries sustained in a motor vehicle accident. The matter came before the Supreme Court of Tasmania.

The central legal issue before the Court was whether the appellant had established a breach of duty of care owed by the respondent, and if so, whether that breach caused the appellant's injuries. The Court was required to consider the principles of negligence in the context of a road traffic accident, including the standard of care expected of a reasonable driver and the causal link between any proven breach and the resulting harm.

The Court found that the respondent had breached the duty of care owed to the appellant by failing to keep a proper lookout. This breach was found to be the direct cause of the collision and the appellant's subsequent injuries. The Court applied established principles of negligence, focusing on the foreseeability of harm and the reasonableness of the respondent's conduct. The Court also considered the appellant's own contribution to the accident, but ultimately found that the respondent's negligence was the primary cause.

The Court ordered that the appeal be allowed and remitted the matter to the trial division for assessment of damages.

Orders